Cases and authorities

ESTOPPEL — proprietary estoppel — encouragement — plaintiff daughter and son-in-law sell home and move in to property of defendant mother and pay sister $100,000 — plaintiffs expend capital renovating property — plaintiffs claim to have done so upon representations by defendant that plaintiffs would become sole owners of property — defendant claims to have allowed plaintiffs to reside in property for indefinite period to raise their children and save money for own home — neither party’s case accepted in whole — family arrangement involved counter-assumption that defendant would be allowed to reside in renovated granny flat on property — whether plaintiffs have beneficial interest in property arising from equitable estoppel — whether element of counter-assumption should influence relief granted

COSTS — party/party — general rule that costs follow the event — whether to apportion costs as between different issues where there has been mixed success — parties to bear own costs save for in respect of one issue — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — whether unreasonable for plaintiff to reject Calderbank offer — rejection not unreasonable

CONSUMER LAW — misleading or deceptive conduct — husband and wife plaintiffs seek to purchase property ‘off the plan’ in residential tower development — design concept of tower involves installation of black privacy screens on balconies of every third floor — defendant developer omits numbering levels 4 and 14 — whether defendant’s agent represented to plaintiffs by reference to display model that unit sought to be purchased would be on numbered level with black privacy screens where representation failed to account for omission of lower level numbers — silence or non-disclosure — whether defendant’s agent failed to warn of siting of intrusive structural columns and air-conditioning unit in property as finally built — representations as to future matters — whether representations, if made, were representations as to future matters or as to present facts — limitation of liability — disclaimer — whether bevy of disclaimers in contractual provisions and promotional material capable of and successful in dispelling misleading or deceptive quality of representations — preliminary character of ‘off the plan’ development renders plaintiffs dependent on representations of defendant’s agent — causation or reliance — black privacy screens of special importance to second plaintiff suffering from skin condition — remedies — defendant liable to repay deposit plus interest — defendant precluded from prosecuting claim against plaintiffs for breach of contract or claim enforcing contractual provision in respect of purchaser’s default

EQUITY — general principles and maxims — they who seek equity must do equity — defendant provisionally successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — parties granted leave to adduce certain evidence on issue of quantum of compensation payable to plaintiff — assessment of compensation — competing expert reports — over-capitalisation in renovating residential property — plaintiff entitled to $400,000 in compensation

SUCCESSION — construction — use of extrinsic evidence — testator makes gift of named farming property by reference to proper noun and land area — whether subject matter of gift refers to one or all three of three contiguous but historically distinct farming properties — consideration of application of general law and statutory rules of admission of extrinsic evidence where Court required to determine objective meaning of testator’s use of proper noun in will

CONTRACTS — real estate agency agreement — whether plaintiff real estate agent entitled to commission pursuant to s 55 of the Property and Stock Agents Act 2002 (NSW) JUDGMENTS AND ORDERS — entry — entitlement of the defendant to set aside orders to be preserved pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) — delay of entry of orders for 28 days

CORPORATIONS – application for leave to continue proceedings against company in administration – where administrator has not provided consent to continue proceedings but does not oppose the application – where appointment of administrator was made by the company two days prior to the commencement of the proceedings – whether leave should be granted on terms

LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW) — Site agreements — Whether site agreement provided that site fees payable under it be increased in accordance with the Act — Whether site fee increase clause constituted a “fixed method” — Whether site fee increase clause constituted a “fixed calculation”

RESTITUTION — Nature of restitutionary liability — Common counts — Money had and received to the use of the plaintiff — Onus of proof — Money paid by plaintiff to defendant to hold subject to further directions — Where plaintiff requested repayment — Where defendant said funds were paid out pursuant to plaintiff’s directions — Whether plaintiff required to prove payments were made without authority

PRACTICE AND PROCEDURE – Application for expedition of leave application and appeal – Not in interests of justice to grant high degree of expedition sought – Application dismissed – Costs in the cause

APPEALS – procedural fairness – whether court below was bound to fix a date for the hearing of a notice of motion prior to the date of the final hearing – leave to appeal refused

COSTS – General rule that self-represented litigant cannot recover costs of its own time – Chorley exception for self-represented litigants who are themselves lawyers – Abrogation of Chorley in Bell Lawyers v Pentelow – Whether abrogation extends to bar recovery of costs of employed solicitors of a litigant law firm acting for itself – Historical right of litigant law firm to recover costs of its employed solicitors derives from Chorley exception, and not “employed solicitor exemption” which permits recovery of costs of “in-house” solicitors – Held that abrogation of Chorley exception in Bell Lawyers extends to preclude recovery of costs of employed solicitors of litigant law firm acting for itself ADMINISTRATIVE LAW – Remedies – Certiorari – Reviewability of decision – Indication in correspondence by costs assessor that it will consider an element of a claim in the course of assessment, rather than as a preliminary point, has no a discernible effect on legal rights – Decision not amenable to certiorari – Whether reviewable error of law – Mere indication of intention to embark on process is not itself a jurisdictional error ADMINISTRATIVE LAW — Remedies — Equitable remedies — Declaratory relief – Substantive question of principle – Application of law to circumstances relevant to pending costs assessment – Resolution of question would simplify costs assessment – Binding decision made by Court on preliminary point in costs assessment

APPEAL — Appeal from Local Court — dispute between landlord and tenant — where Local Court found in favour of the landlord — where hearing in Local Court was flawed due to lack of procedural fairness afforded to the tenant — where tenant could not read or write in the English language — where tenant was represented at the hearing by lay advocate — order made for a rehearing in the Local Court by a differently constituted Court

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved – Transfer of assets within internal reconstruction of corporate group.

CIVIL PROCEDURE – infant settlement approval – compromise – whether settlement in best interests of infant

EVIDENCE – Expert evidence – Plaintiff seeks appointment of an adversarial expert, rather than joint expert, principally because a party has the right in litigation to “control her own destiny” – No attempt made by Plaintiff’s solicitors prior to filing and serving notice of motion to engage with Defendant’s solicitors on identity of any joint expert to be appointed – Relevance and importance of Civil Procedure Act, the UCPR, and Practice Note SC Eq 5 regarding expert evidence – Significance of UCPR r 31.17 which identifies the main purposes of the expert evidence rules – Relevant part of the Civil Procedure Act and the UCPR to safeguard the impartiality of the expert – Relevance of case management principles – Significance of nature of the proceedings which are Probate proceedings and the utility of the evidence of an adversarial expert, who neither saw, nor treated, the deceased

ADMINISTRATIVE LAW – judicial review – where the plaintiff commenced a number of private prosecutions – where the Commonwealth Director of Public Prosecutions took over and discontinued the prosecutions – where the Magistrate granted leave for the Commonwealth Director of Public Prosecutions to do so – whether there was a decision by the Magistrate – consideration of circumstances in which prerogative writs will issue – whether the Commonwealth Director of Public Prosecutions was obliged to provide reasons for taking over and discontinuing the prosecutions – First Cross-Summons summarily dismissed

MORTGAGES — Payment in Court — Applications for payment out by mortgagee and controller of company and liquidator of company. PROCEDURE — Principles and mechanics as to payment into Court — Alternatives for mortgagee payment into Court in stakeholder's interpleader (Part 43 Uniform Civil Procedure Rules 2005 (NSW)) and payment into Court under Part 4 Trustee Act 1925 (NSW) — Part 55 Uniform Civil Procedure Rules 2005 (NSW) explained — Principles as to payment out explained — Distinction as to treatment of and determinations regarding trust monies paid in and non-trust monies paid in — Basis of exoneration of payee TRUSTS — Indicia of beneficial interests, declaration of trusts and sham trusts discussed EVIDENCE — proof of intention LIQUIDATORS — Directions in relation to questions arising in respect of the external administration of the company: s 90-15(3)(a) Insolvency Practice Schedule (Corporations) — Certain conflicting materials arising from liquidator’s investigations regarding whether company owner in own right of property or as trustee — Advice given

EVIDENCE – accessory after the fact to murder – whether sufficient evidence of actus reus to go to the jury – application to recall witness – whether in the interests of justice to do so

COSTS – trusts and trustees – series of judgments given determining the scope of the indemnity of a trustee – the parties contest the quantification of the indemnity – specified gross sum costs orders made under Civil Procedure Act 2005, s 98(4)(c) instead of assessed costs after the contest – further specified gross sum costs orders sought in respect of a later period.

CONSTITUTIONAL LAW — Federal jurisdiction — Principle in Burns v Corbett — Inability of administrative tribunal to determine matters where judicial power being exercised — Taking administrative steps preliminary to exercising judicial power PERSONAL INJURY CLAIMS — Statutory interpretation — Section 26 of the Personal Injury Commission Act 2020 (NSW) — Legislative response to Burns v Corbett — Meaning of “compensation matter application” — Compensation matter application refers to applications made in respect of a particular dispute or issue that has arisen in the course of dealing with a claim, not a generic reference — No specific application requiring determination was presented in this case

CIVIL PROCEDURE – pleadings – amendment – grant of leave to amend after conclusion of hearing – application of s 63 of Supreme Court Act 1970 (NSW) – possibility of multiplicity of proceedings – absence of express reference to ss 56, 57, and 58 of the Civil Procedure Act 2005 (NSW) – no basis to interfere with judge’s exercise of discretion to allow amendment

LIMITATION OF ACTIONS – Motor accidents – Failure to commence proceedings within three years of accident – Requirements of leave under Motor Accidents Compensation Act 1999 (NSW) ss 66(2) and 109(3)(a) – Whether a “full and satisfactory” explanation for delay – Whether evidence required by each of the applicant’s former legal advisors to constitute a full and satisfactory explanation for delay

PROCEDURE – application for review of Registrar’s refusal to make orders under s 12 of the Criminal Appeal Act 1912 (NSW) – appeal pending – applicant seeks orders for production of documents, “information”, and further statements – such orders must be in the “interests of justice” – must relate to grounds of appeal – necessity for such orders to be narrow in scope

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Genuine dispute about existence or amount of debt — Whether the dispute is genuine in the sense that it is arguable — Whether the dispute also genuine in the sense that it is not manufactured in response to the pressure created by the demand or otherwise not brought in good faith.

CIVIL PROCEDURE – representative proceedings – where plaintiff alleged defendant trustee company wrongfully used fees charged to trust beneficiaries to pay commissions – proceedings settled – large number of group members – individual claims of group members modest – amount payable to individual group members also modest – where compromise appears to reflect risks of proceeding – where some 40% of settlement available for distribution to Group Members after payment of Funder’s costs, commission and other deductions

CONTRACTS – contract for sale of land – payment of deposit – contract provides for payment of a deposit of $520,000 to vendor’s agent – no payment made to vendor’s agent – payments totalling $652,999 made in discharge of vendor’s bank loan – whether payments should be characterised as payment of deposit – whether payments should instead be characterised as loans to vendor by shareholders – held that the parties intended the $652,999 to be paid instead of the $520,000 as provided under the contract – held that the payments discharged the purchaser’s obligation to pay the deposit – vendor not entitled to terminate contract due to a failure to pay deposit CORPORATIONS – director’s duties – duty to act in good faith and in the best interests of the company – duty to exercise powers for a proper purpose – director causes company to enter into lease of its land – lease said to be “manifestly disadvantageous” – not shown that director did not honestly believe he was acting in the best interests of the company – objective circumstances do not show that director was acting contrary to the best interests of the company – no improper purpose identified or established – no loss proven in any event CORPORATIONS – director’s duties – duty to act in good faith and in the best interests of the company – duty to exercise powers for a proper purpose – director causes company to enter into contract for sale of its land – sale said to be to a purchaser in which director had an interest – sale not alleged to be at an undervalue – interest of director in purchaser an indirect security interest not an equity interest – not shown that director was acting otherwise than in good faith and in the best interests of the company as he perceived them – objective circumstances do not show that director was acting contrary to the best interests of the company – no improper purpose identified or established – no loss proven in any event

COSTS – where cross-claimant granted leave to amend its Technology and Construction Cross-Claim Cross-Summons and Cross-Claim List Statement – costs thrown away by the amendment – whether such costs should include any costs cross-defendant will incur in revisiting existing evidence – whether cross-defendant should pay costs of amendment application

OCCUPATIONS — legal practitioners — misconduct and discipline — application by Law Society to remove from the Roll the name of a solicitor found guilty of professional misconduct and unsatisfactory professional conduct — appeal by solicitor against Tribunal (NCAT) decision — parties subsequently sought to have orders made by consent — the Court must satisfy itself as to the appropriateness of proposed consent orders APPEALS — Tribunal (NCAT) exceeded its jurisdiction — its finding of reckless indifference was impermissible because it went beyond the allegations put to it by the Law Society — on the application of both parties the Court set aside the Tribunal’s order recommending removal of the solicitor’s name from the Roll and in lieu ordered that the solicitor not be permitted to apply for a new practising certificate unless she satisfies an educational condition

CRIMINAL LAW – sentencing – application of early appropriate guilty plea provisions – prescriptive scheme for sentencing discounts – where instructions to plead guilty provided well in advance of trial – instructions communicated to prosecutor but not to court – arrangements not made for entry of plea 14 days before trial date – applicant not represented at pre-trial call-over – court notified of plea one day after 14 day cut off for larger sentencing discount – applicant’s case fell between the cracks – material irregularity in sentencing proceedings – whether proceedings miscarried – whether practical injustice resulted – where prescriptive nature of provisions do not allow the appellate court to adjust level of discount – significant material tendered on the usual basis – lesser sentence warranted – applicant re-sentenced

CRIME – appeal against sentence – specially aggravated break enter commit serious indictable offence being assault occasioning actual bodily harm – Form 1 offence of intentionally damaging property – principal offence involved violence and was committed in company – question of whether aggravating features under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) were incorrectly held to exist – question of error of fact made by sentencing judge - factual error established – no lesser sentence warranted – appeal dismissed.

CRIMINAL APPEAL – remittal for re-sentence from the High Court of Australia – High Court quashed all convictions subject to High Court appeal – remaining convictions not subject to appeal require re-sentence – no reason to depart from previous indicative sentences – no reason to depart from previous ratio between head sentence and non-parole period – applicant re-sentenced

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether the demand should be set aside on other grounds

CIVIL PROCEDURE – final orders discharging interlocutory injunction – application to extend stay of orders pending application to the Court of Appeal – prejudice to the plaintiff if injunction is discharged – balance of convenience – application refused

CIVIL PROCEDURE – Suppression and non-publication – necessary to make an order providing pseudonyms to the parties to reflect obligations under s 121 of the Family Law Act 1975 (Cth)

COSTS – co-ownership – costs of proceedings commenced under s 66G of the Conveyancing Act 1919 (NSW) – where proceedings resolved by consent orders – where proceeds of sale of co-owned property already distributed – whether costs order should be made against first defendant either pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) or because of unreasonable conduct – held that there should be no order as to costs of the proceedings, including the costs of the costs application

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia — Stay of Supreme Court of New South Wales proceedings because parenting and related property dispute in the Federal Circuit and Family Court of Australia — Substantive proceedings concerning trust claims over a property — Relevant factors — Whether in the interests of justice — Where risk of delay and costs would impact third party children in the relationship

CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Where parts of the plaintiff’s claim in misleading and deceptive conduct are barred by a settlement agreement — Where plaintiff’s claim out of time

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Calderbank offer — Whether there is an “event” if hearing to determine price of shares is the result of a compromise of substantive proceedings

CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

BUILDING AND CONSTRUCTION — Adjudication — Natural justice — Where the adjudicator applied a conversion factor in his determination which was not raised by the parties and to which the parties did not have an opportunity to make submissions — Whether there was a breach of procedural fairness in the adjudicator’s application of that conversion factor

COSTS – multiple defendants – plaintiffs bring action for specific performance against the first defendant and for misleading and deceptive conduct against both defendants – first and second defendants represented by the same solicitors and counsel – plaintiffs awarded damages in lieu of specific performance against the first defendant but fail in the claim for misleading and deceptive conduct against both defendants – what order for costs should be made in favour of the plaintiffs against the first defendant – what order for costs should be made in favour of the second defendant against the plaintiffs – consideration of issues where plaintiffs have mixed success against defendants.

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — Interlocutory order dismissing an application to discharge the jury — Application dealing with admissibility of evidence — Application brought 45 days into four-month trial — No evidence of detriment to applicant — No immediate objection taken by counsel below to disputed evidence — No cross-examination directed to area of controversy — Whether Crown ought be bound by its submissions made much earlier in the proceedings — Decision within discretion which the trial Judge had and properly exercised — Application dismissed

CRIMINAL LAW – conviction appeal – appeal from decision of the District Court – judge alone trial – whether trial judge’s conduct gave rise to procedural unfairness or an apprehension of bias causing a miscarriage of justice – whether wrong test applied in determining whether appellant had established that he was mentally ill at the time of the alleged offence – whether a special verdict of act proven but not criminally responsible should be entered pursuant to s 7(4) of the Criminal Appeal Act 1912 – appeal allowed – special verdicts entered

CRIME — Appeals — Appeal against sentence — Failure to determine objective criminality of offence — Ground upheld CRIME — Appeals — Appeal against sentence — Failure to take account of “Bugmy factors” — No relevant evidence of such factors — No relevant submission made below — Ground dismissed CRIME — Appeals — Appeal against sentence — Re-sentence — No lesser sentence warranted

CIVIL PROCEDURE — Parties — Joinder — Of defendants — Where a person applies to be joined to proceedings involving a company in liquidation, largely on the basis that he occupied a property owned by the company — Where that person also applies for an order setting aside previous orders affecting the property. CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Whether these proceedings should be transferred to the Family Court where there is an overlap of issues with proceedings in that Court. LAND LAW — Possession — Where the company’s liquidator seeks an order for the possession of the property.

LAND LAW – caveats – application for withdrawal of caveat lodged by defendant over plaintiff’s property – where previous caveat lodged by the defendant in identical terms had been subject of orders for withdrawal and had lapsed – whether second caveat lodged without leave – second caveat ordered to be withdrawn as lodged without leave and of no effect – where plaintiff seeks order restraining defendant from lodging further caveat – no restraint ordered

PRACTICE – NSW Trustee and Guardian Act – Managed person – Private managers – remuneration – Regulatory regime – Report of NSW Trustee and Guardian

CRIMINAL PROCEDURE – trial – judge alone – unrepresented accused – closing address – discretion to permit Crown Prosecutor to give a closing address

CIVIL PROCEDURE – Dismissal of proceedings – whether a reasonable cause of action is disclosed – whether proceedings constitute an abuse of process – reflective loss – Statement of claim dismissed – Leave granted to replead